Freedom of men under government is to have a standing rule to live by, common to every one of that society… and not to be subject to the inconstant, uncertain, arbitrary will of another man.
~ John Locke, Second Treatise on Civil Government
Florida Judge Terry Lewis’s decision on Tuesday regarding the deadline for Florida counties to hand in election results makes a mockery of the rule of law. Mark Levin and David Limbaugh describe the ruling in their National Review Online piece, “This Shall Be Known as Hash“: “Moreover, the judge ruled that the Secretary of State ‘may’ ignore the late ballots, but she must not do so in an ‘arbitrary or unreasonable’ manner.” Similar interpretations of other laws would imply that prosecutors “may” try a killer for murder, but must not do so “arbitrarily,” or that someone who steals my TV may not be “unreasonably” required to give it back.
As F.A. Hayek pointed out in The Constitution of Liberty, the characteristics of a law that is compatible with freedom are that it is clear cut, general, and requires minimal discretion on the part of administrators. Citizens living under the rule of such laws have firm guidelines as to whether they are permitted to undertake some activity. This clarity enables them to freely make their own plans without the fear that what they do will be declared illegal, at the whim of some official. Citizens can understand what the legal consequences of their actions will be. They know that if they kill someone and are caught, they will go to prison.
Hayek’s precepts are not the be-all and end-all of just law. I once saw someone comment, “Hayek’s rules would not forbid a government from declaring ‘Everyone should wear green shirts on Wednesday.'” (I’d give this person credit, except that I can’t remember who said it.) While this is true, they do forbid a government from saying, “No one shall wear anything displeasing to the ruler.” This distinction is not inconsequential. Under the first rule, citizens can still plan their activities with a fair degree of certainty as to their legal consequences. Under the second rule, no one knows which clothes will pass muster. The citizens must make an effort to “please” their ruler, who has ultimate discretion over their dress.
Hayek understood that general and determinate rules can be treated, by those subject to them, similarly to the laws of the physical universe. While we may view a restriction on marijuana consumption as unwarranted, we can, in effect, deal with the situation as if it were the case that marijuana did not exist in our world. Such a law is not a road to tyranny – unlike, for instance, a law that says, “If someone is suspected of dealing in marijuana, we may seize his assets.” Suspecting someone is a subjective judgment, and places citizens at the whim of those in power. There is no clear way to defend oneself against such a charge, and no guideline as to when one is “acting suspiciously.”
It is interesting to note that this distinction would retain its importance even in an anarcho-capitalist society. While the owner of a large leasehold would be free to create whatever laws he desired, in the interest of making his land attractive to his tenants he would be wise to follow Hayek’s guidelines.
Judge Lewis’s admonition to Secretary of State Katherine Harris not to be “arbitrary” in her rejection of late votes is the antithesis of Hayekian law. The only non-arbitrary way to proceed is to simply reject any vote counts arriving after five on Tuesday. When five o’clock has passed is an issue that is free from personal bias, and votes are clearly in before or after that time. A firm deadline, picked in advance of an election, relieves officials from charges of favoritism and allows the election to proceed in an unbiased fashion. Chosen in advance, such a rule cannot be said to favor one candidate or the other, as no one can know beforehand which candidate might benefit from a different deadline.
However, now that this deadline is no longer final, any decision by Harris will be considered arbitrary, at least by whomever dislikes the decision. What this ruling means, in fact, is that the election of our next President may turn on the subjective judgment of those who are asked to evaluate the various lawsuits following in the wake of this bizarre ruling.
November 18, 2000
Gene Callahan is a regular contributor to mises.org.
2000, Gene Callahan
